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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 8814
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SMITH
C2001/1290
MEDIA, ENTERTAINMENT AND
ARTS ALLIANCE
and
AUSTRALIAN BROADCASTING
CORPORATION
Notification pursuant to section 99 of the
Act of a dispute re procedural fairness
when using internal disciplinary processes
MELBOURNE
11.10 AM, THURSDAY, 9 AUGUST 2001
Continued from 26.6.01
PN57
THE COMMISSIONER: Any changes to appearances?
PN58
MS H. McKENZIE: Yes, if it please the Commission. I now appear for the ABC in lieu of Ms Shanahan, with me MS H. GAMALI from the ABC.
PN59
THE COMMISSIONER: Did I grant Ms Shanahan leave on the last occasion?
PN60
MS McKENZIE: Yes, you did, Commissioner.
PN61
THE COMMISSIONER: Did I? Very well. Now, I received a number of documents. Let me tell you what I received so you will see whether I have missed any. I received a letter from Mr O'Donnell outlining his position. Is there anything in addition to that, a witness statement or anything else?
PN62
MR O'DONNELL: No, sir.
PN63
THE COMMISSIONER: And I have received witness statements from Mr Bass, Mr Cameron and Mr Palmer.
PN64
MS McKENZIE: That is right.
PN65
THE COMMISSIONER: Is there any outline of submissions?
PN66
MS McKENZIE: Yes, there should be.
PN67
THE COMMISSIONER: There was, was there?
PN68
MS McKENZIE: Yes. The document - submissions filed on 6 July, Commissioner.
PN69
THE COMMISSIONER: Yes. All right. Well, I will just have to check that. Now, Mr O'Donnell, having read this material, are any of these persons you would wish to cross-examine?
PN70
MR O'DONNELL: Yes, sir, both Mr Bass and Mr Palmer.
PN71
THE COMMISSIONER: All right. And do I understand your case to turn on this proposition that Mr Bass caused an investigation to take place. Mr Bass was the person whose advise was accepted about the penalty. And Mr Bass was the person who then, on behalf of management, reviewed the concerns Mr Everett had about the penalty?
PN72
MR O'DONNELL: That is correct. And by extension to question 4, which you asked us to address - - -
PN73
THE COMMISSIONER: Yes.
PN74
MR O'DONNELL: - - - Mr Bass - sorry, Mr Everett was then denied procedural fairness in this matter.
PN75
THE COMMISSIONER: I see. All right. What I might do to begin with, is to have one more attempt at seeing whether I can resolve it. It shouldn't take too long. I will know pretty quickly whether I can or I can't. So, I might adjourn into conference. And, Mr O'Donnell, if you wouldn't mind, I might see the employer's side first. Thank you.
SHORT ADJOURNMENT [11.12am]
RESUMED [11.50am]
PN76
THE COMMISSIONER: Now, is there any view about who should go first, or will we deal with the evidence first? Mr O'Donnell, will we deal with the evidence first?
PN77
MR O'DONNELL: Sir, in my opinion we deal with the evidence first.
PN78
THE COMMISSIONER: All right. And you wanted to cross-examine Mr Palmer and Mr Bass?
PN79
MR O'DONNELL: Indeed, yes, sir.
PN80
THE COMMISSIONER: All right. Ms McKenzie.
PN81
MS McKENZIE: That seems an appropriate course, Commissioner. We propose to call it in this order, Mr Bass first and then Mr Palmer. Perhaps, Commissioner, given that Mr Cameron apparently is not going to be required for cross-examination, perhaps if his affidavit is simply marked as an exhibit. He is here at the moment, but if he is not required he would like to be excused to go and do other things. So, unless you yourself had any questions that you would want to ask him, I was going to propose that each of the affidavits simply be marked as exhibits, and then advise the Commission that Mr Cameron will leave.
PN82
PN83
MS McKENZIE: Thank you, Commissioner. Perhaps then, Commissioner, if I simply call each of the other witnesses and - - -
PN84
THE COMMISSIONER: They can adopt their statements.
PN85
MS McKENZIE: - - - then I can tender their affidavits through.
PN86
THE COMMISSIONER: Yes.
PN87
MS McKENZIE: I call Marco Bass.
PN88
MR O'DONNELL: Mr Commissioner, before we go down there, I would ask that the witness be excluded from the hearing.
PN89
THE COMMISSIONER: Very well.
PN90
MS McKENZIE: I have no objection to that, Commissioner.
PN91
PN92
MS McKENZIE: Mr Bass, your full name is Marco Bass?---That is correct.
PN93
And you are the Victorian State Editor for the ABC News and Current Affairs?---That is correct.
PN94
And, Mr Bass, have you prepared an affidavit of the evidence that you wish to give in these proceedings?---Yes, I have.
PN95
Do you have a copy of that with you?---I do.
PN96
Do you say that the contents of that affidavit are to the best of your knowledge, true and correct?---I do.
PN97
PN98
MS McKENZIE: I have no further questions of Mr Bass.
PN99
PN100
MR O'DONNELL: Thank you, sir. In this matter, Mr Bass, who do you believe was the initiator of disciplinary action against Mr Everett?---The initial complaint came to me from two sources outside News and Current Affairs. I then referred the matter to Global Human Resources, my federal News and Current Affairs management and federal Human Resources management. Had I not alerted them to the issue, I don't know how they would have found out about it. As to your question about who initiated it, I think it is a question of semantics.
**** MARCO BASS XXN MR O'DONNELL
PN101
So, I take that you are not giving us an answer? You are saying that you didn't initiate the action. Is that your position?---Are you referring to the investigation?
PN102
I am talking about the disciplinary action that has been taken by the corporation against Mr Everett, in its totality?---There are several stages of course. There was the initial consideration. Then there was the investigation. Then there was the process that followed the investigation. Which part are you referring to?
PN103
The initial question that the Commission required of both parties was, did Mr Bass initiate the investigation into Mr Everett?---Well, the answer is no.
PN104
All right. Looking at clause 13 of your affidavit to this Commission - can you find that?---Yes.
PN105
Just to read from that for you:
PN106
I also contacted Mr John Cameron, the National Editor, News and Current Affairs, in Sydney, and informed him of the incidents, and he agreed that the incidents should be investigated.
PN107
Is that correct?---That is right.
PN108
Also, if you would like to look - I don't know if you have got a copy of your original statement to the investigating officer of this matter. You also advised Mr Robinson - and I am looking at clause 18 of that statement. And this follows the discussion that you had with Mr Robinson, the then Chief of Staff of the Sunday Herald Sun. And in clause 18:
**** MARCO BASS XXN MR O'DONNELL
PN109
At the end of the conversation between me and Russell Robinson, I advised Russell Robinson that I would be making inquiries and taking appropriate action.
PN110
What was the appropriate action that you were going to take in that circumstance?---Well, at that stage it wasn't known. I had to seek advice on that, as I did.
PN111
And you don't see that action as being the initiation of action against Mr Everett?---Well, you referred to your previous question on point 13 of my affidavit. I had already been advised by Karl Hughes, that a procedure would be put in place. And that is merely what I was referring to. I didn't know what the procedure was at that time.
PN112
All right. Clause 49 of your statement to the investigator. And at this stage you have spoken to Mr Colin Palmer?
PN113
MS McKENZIE: I am sorry, Commissioner. Can I just interrupt? I think Mr O'Donnell is reading from a different statement, not the affidavit that has been tendered in these proceedings.
PN114
MR O'DONNELL: I am talking to the statement that was given by Mr Bass to the investigator.
PN115
MS McKENZIE: Yes. I am not sure Mr Bass has actually got that with him. I think there is a bit of confusion about what paragraph numbers. I think it is a different document.
PN116
MR O'DONNELL: Well, perhaps then to simply it for Mr Bass, I will actually read out what he said. And at clause 49 it is - - -
**** MARCO BASS XXN MR O'DONNELL
PN117
THE COMMISSIONER: And this will be included in full in the transcript.
PN118
MR O'DONNELL: Clause 49:
PN119
Colin Palmer discussed the matter with me and advised a range of options which could be instituted by me in my role as State Editor, Victoria.
PN120
What do you now think were those range - what were those range of options that were available to you and could be instituted by you, in your role?---Well, what - you will have to put that in time context, please, Mr O'Donnell.
PN121
Well, you spoke to the Acting Director of Human Resources, Colin Palmer, seeking advice presumably on where this matter was going?---On what date was this conversation?
PN122
On Monday, 16 October?---Right. Okay. And your question is?
PN123
What were the range of options that could be instituted by you in your role as State Editor, Victoria?---I think they ranged from dismissal to investigation. But his recommendation was, and his desire was, for there to be an investigation.
PN124
And you don't believe that that decision at that stage, instituted the proceedings against Mr Everett?---That decision was made by Colin Palmer.
PN125
The decision to conduct the investigation, you say, is the same as the instituting of proceedings against Mr Everett?---I merely brought the issues of the breach of conduct, or the misconduct, to the attention of both my federal News and Current Affairs manager and federal Human Resources management.
**** MARCO BASS XXN MR O'DONNELL
PN126
Again we are looking at that same document. In clause 50 you say:
PN127
I decided suspension with pay was the appropriate option to follow.
PN128
?---That was my advice.
PN129
That was your decision?---That was my advice from Colin Palmer.
PN130
No, I am not asking whether that was your advice. I am asking whether that decision - you say here:
PN131
I decided suspension with pay was the appropriate option to follow.
PN132
MS McKENZIE: Commissioner, I am sorry to interrupt again, but it does seem a bit confusing. I think it ought to be made clear to Mr Bass, whether this is concerning the action which was to be taken pending the investigation or during the investigation, or whether this decision is the final disciplinary action. I think - and it would help Mr Bass if he could have a look at that statement perhaps. But the option of suspension without pay is an option which is applicable to action to occur during the course of an investigation. And I think perhaps Mr O'Donnell needs to clarify with Mr Bass, whether he is talking about the decision as to how Mr Everett was to be treated during the investigation, or some later decision about whether disciplinary action should be taken following the outcome of the investigation. Mr Bass may understand it, but I am getting confused, I am sorry.
**** MARCO BASS XXN MR O'DONNELL
PN133
MR O'DONNELL: With respect, the four questions that were directed to the parties here by you, sir - the first one - did Mr Bass initiate the investigation into Mr Everett? Quite simple. I am surprised you are confused, but then again these things happen. What I am seeking from Mr Bass, is some indication where the initiation of the investigation - when the initiation actually occurred. And I would suggest that it occurred from the point when Mr Bass made the decision to involve Mr Palmer, Mr Cameron - all the other processes that come into place. It was not a decision that was made at any other time. As part of that decision that Mr Bass made, one of them was to suspend Mr Everett. And as in his statement:
PN134
I decided suspension with pay was the appropriate option to follow.
PN135
The commencement of the proceedings, in some way. So - - -
PN136
THE COMMISSIONER: I understand that point you are trying to make. Having read the material, do you - well it is probably a question you will be asking Mr Palmer, but it just seemed to me, that it is clear on the face of the documents, that Mr Bass recommended the action, but Mr Palmer was the person, who the ABC says, has the authority to implement that investigation. Is that something that you are taking issue with, in questioning this witness?
PN137
MR O'DONNELL: Sir, with respect, I am taking issue with that. What Mr Palmer may well say, is not borne out by other documents that have been presented in this case either.
PN138
THE COMMISSIONER: I see. All right. Very well. I think your question, wasn't it, to Mr Bass, is whether or not he had authority to suspend, and did he exercise that authority. Is that your question?
PN139
MR O'DONNELL: Yes?---Naturally I have the authority to suspend. And yes, I was the first person to verbally advise Mr Everett of that, but the official ABC notification of that suspension and the process which was to follow, as you know from the documentation, came from Mr Palmer.
**** MARCO BASS XXN MR O'DONNELL
PN140
So, when you rang Mr Everett at 5.30 on that evening - Monday the 16th, you advised him that he had been suspended on pay?---I did.
PN141
You didn't equivocate and say, "But this is subject to Mr Palmer approving of that", or - - -?---No, Mr Palmer had already directed that that was the course of action which would be followed.
PN142
So, your statement to the investigating officer then is incorrect, is it? You didn't decide on suspension with pay. You had no capacity to do that. Is that correct?---I had an advisory capacity and I was representing the ABC at that point in a situation - as the local manager.
PN143
So, can I simply get yes or no? Yes, you did suspend Mr Everett on pay, or no, Mr Palmer - - -?---Yes, I verbally notified Mr Everett of his suspension on pay.
PN144
Right. Can we go to your discussions that you had with Mr Robinson. And I notice that Mr Robinson is now Mr Robertson in a difference between your original statement and your affidavit. Is that - which is correct there?---Robinson.
PN145
Right. Did you read your affidavit?---Yes, I did.
PN146
And you signed it believing it to be correct then?---Yes, I did, Mr O'Donnell.
PN147
How did it happen that Mr Robinson's name is incorrect in that document?---I don't know, Mr O'Donnell.
PN148
You had a discussion on the Friday afternoon with Robinson, and as a result of that, you claim that there were three elements in his report to you. One was there would be a conviction - this is presumably according to Mr Everett's view of the world - that the conviction of Major was dodgy?---That is correct.
**** MARCO BASS XXN MR O'DONNELL
PN149
Right. That Mr Everett suggested that Major should be treated with journalistic leniency?---That is correct.
PN150
And that Mr Everett used undue influence on Mr Robinson?---That is correct. Well, no, that Mr Everett had attempted to use his authority as a senior ABC journalist in influencing Mr Robinson.
PN151
So, the statement that you gave to the investigating officer, in clause 17:
PN152
Alan Everett used undue influence on Russell Robinson.
PN153
is incorrect?---No, it is not incorrect. I was just merely clarifying exactly what we were talking about.
PN154
I am sorry. There is some confusion now. I am not quite sure - in your statement you say he used undue influence. You then said, no he didn't. You are now saying, yes he did. What is it?---He used undue influence. And then I further clarified the point, that the nature of that undue influence was to use his position as an ABC employee, to exercise that influence. So, no, the answer is yes.
PN155
Do you think that someone like Mr Robinson, with his years of experience in dealing with - both as a journalist and later as a management person, would be influenced by that decision?---It bothered him enough to ring me, Mr O'Donnell.
PN156
No, that is not quite what I was asking. Undue influence is quite a different concept, isn't it?---It was the attempt to influence that Mr Robinson was so concerned about.
**** MARCO BASS XXN MR O'DONNELL
PN157
So, it was only an attempt to influence that was Mr Robinson's concern, not as you say, used undue influence?---I think Mr Everett attempted to exercise undue influence, yes.
PN158
This doesn't qualify that point, that Mr Everett used undue influence on Mr Robinson. That is what you say. That is the statement that would have gone to the investigator and would have gone finally to a decision?---But the intent and the effect are two quite different things.
PN159
I agree, but you say that Mr Everett used undue influence on Mr Robinson. It is also interesting to consider that, in light of an e-mail that you sent to Mr Palmer on October 10, which said that according to Mr Robinson, that Mr Everett had not tried to use his position at the ABC to influence his, Mr Robinson's, editorial decision. Could you explain the two differences that appear there?
PN160
MS McKENZIE: Well, Commissioner, if Mr O'Donnell is going to pursue this line, he is going to have to show Mr Bass what he is referring to. I don't see what it has got to do with the four issues which are the subject of the proceedings. But if he is going to proceed, at the very least he has got to give Mr Bass the opportunity to see what it is that he is referring from. Let Mr Bass read it so he can answer the question.
PN161
THE COMMISSIONER: How does the detail of the allegations assist me in answering the questions, Mr O'Donnell?
PN162
MR O'DONNELL: I am sorry. I am just trying to establish that Mr Bass was the one consistent part of this whole process. That he was, unlike the bit players of Mr Cameron and Mr Palmer, he was the one consistent party to this whole process that was intending to discipline Mr Everett.
PN163
THE COMMISSIONER: Do you agree that you were there at every stage?---I was certainly at least a participant at every stage. I certainly was not involved in any position of authority or management during the investigation process, Commissioner.
**** MARCO BASS XXN MR O'DONNELL
PN164
The one that was sent to Mr Smith?---I beg your pardon.
PN165
The investigation that Mr Smith did - no, not Mr Smith - - -?---No, Ms Lindsay Woods.
PN166
Yes. I am sorry. Yes?---And yes, I was a participant in - at least a participant in all of it, yes.
PN167
MR O'DONNELL: Moving along to the actual setting of the penalty, which in our view is quite out of keeping with any offence that might have occurred, but you were part of that process?---Yes, I was.
PN168
Can you tell me what part you played in it?---I was asked by my National Editor, John Cameron, to provide advice on a range of penalties, and how I would operationally handle Mr Everett when he returned to work. And I put up a range of possibilities, and that was then considered federally both by Human Resources and by Federal News Management.
PN169
And yet, in an e-mail to Mr Everett - sorry, to Mr Palmer, on 2 February, there is the matter of this paragraph and I will read it for you:
PN170
I propose that he be demoted from .32 to .27.
PN171
Correct so far?---I haven't got the e-mail in front of me. I don't know whether that is correct or not, Mr O'Donnell.
PN172
Well, can you - - -
PN173
MS McKENZIE: I think it is MB2, Mr O'Donnell.
**** MARCO BASS XXN MR O'DONNELL
PN174
MR O'DONNELL: Can you think back to the document?
PN175
MS McKENZIE: I think it is attached to his affidavit, MB2.
PN176
MR O'DONNELL: Yes?---Yes. Okay. Yes. Which paragraph?
PN177
It is towards the bottom of the page, I think from memory. I don't have it here - - -
PN178
MS McKENZIE: It is the last paragraph on the page beginning "Naturally", then the second sentence, "I propose".
PN179
MR O'DONNELL: So, am I right? Your proposal was that he be demoted from .32 to .27?---But that was only after consultation with my federal management, and the decision had been taken by them.
PN180
No, just bear with me, please. Is that correct? You proposed to the process that he be demoted from .32 to .27?---That is correct.
PN181
That is correct?---Mm.
PN182
We are not arguing about that point any more?---No.
PN183
Okay. Can you read on a little bit further there?---
PN184
I have also decided that the ABC will no longer buy out his overtime penalties and allowances.
**** MARCO BASS XXN MR O'DONNELL
PN185
Right. So, you had an active role. You made a decision, that as part of the penalty, the ABC would no longer buy out his overtime penalties and allowances?---I, yes - - -
PN186
Is that correct?---That is correct. I was articulating the decision taken by my federal News Current Affairs management.
PN187
With respect, this is quite clear:
PN188
I have also decided -
PN189
not any qualification on that -
PN190
that the ABC will no longer buy out his overtime penalties and allowances.
PN191
You made a decision?---I was articulating a decision which had been made in consultation with my federal management, and a decision which they finally took. I, as local manager responsible for handling this matter, was articulating that matter to the Human Resources department, that decision.
[12.11pm]
PN192
Well, I am surprised that you can put that interpretation on those words. It is quite plain. You made a decision. I have also decided. I - no qualification with - in reference to anyone else, but I have decided that the ABC will no longer buy out his overtime penalties and allowances. No qualification. Can you tell me what the effect of the ABC no longer buying out his overtime, penalties and allowances means?---In what respect, Mr O'Donnell?
**** MARCO BASS XXN MR O'DONNELL
PN193
Financially?---It is roughly $15,000 a year.
PN194
So he, by your decision, Mr Everett, the penalty on Mr Everett for this matter, was a $15,000 loss to him?---In part.
PN195
What part?---About 75 per cent of the penalty.
PN196
So, what are we talking about in money terms, can I ask?
PN197
---Approximately $20,000 a year.
PN198
Right. Okay. Thank you for that. Going through the process of the appeal, you wrote to the MEAA - you wrote to me at the MEAA on 26 February, and I will quote part of that letter to you.
PN199
THE COMMISSIONER: Is that letter in evidence at all?
PN200
MR O'DONNELL: It was presented, I understand, in the documents to you, sir, by the ABC.
PN201
THE COMMISSIONER: Yes. In B3, is it?
PN202
MR O'DONNELL: Yes.
PN203
THE COMMISSIONER: Yes, thank you.
PN204
MR O'DONNELL: And I will quote from it if I may, sir:
**** MARCO BASS XXN MR O'DONNELL
PN205
We could not resolve the matters between the parties.
PN206
You are talking here between our application to you to consider the findings of the document, findings of the matter, and we sought from you a change to both the penalties and the finding itself. Do you agree with that, that that is a fair summation of the process?---That is correct.
PN207
Right:
PN208
We could not resolve the matters between parties.
PN209
Agree with that?---That is correct.
PN210
And further:
PN211
In response, however, I clearly stated my reasons why I could not resile from a decision set out in the letter of 5 February 2001 from PEG Employment Services, Mr Colin Palmer.
PN212
Correct?---That is correct.
PN213
So, do you acknowledge that your role in that was to act as an appeal person in this matter, Mr Everett's - - -?---I was part of it, yes.
PN214
What part were you? Given that there was only you and Lindsay Wood in that room at that time, which part do you think you were?---Well, I was the part that advised my National Editor, John Cameron, and invited him to attend the meeting and advised him of what you intended to put at that meeting, and advised him of the nature of the meeting subsequently, and so therefore I played an advisory role to my senior Federal Management. That is the part I played, Mr O'Donnell.
**** MARCO BASS XXN MR O'DONNELL
PN215
But at the meeting, what did you advise us? What did you tell us was an outcome from that meeting?---I advised you that there was no new material that I considered would change our position, but that I would, I would again relate the matters to John Cameron, which I did. And then - you were then notified in writing of that?
PN216
Can I ask - what is the position of Tony Walker with the ABC?---He is the Manager of local radio.
PN217
And Mr Murray Green?---He is the State Director of the ABC.
PN218
Both Managers?---Yes, but not within the News and Current Affair structure and divisionally quite separate from it.
PN219
But still, just to go back to my point, both Managers in the ABC at Southbank?---That is right.
PN220
Right. Going back to the beginning of all this matter, how did Mr Cameron first learn of the events?---I rang him and told him about them.
PN221
And when was that, do you remember?---It was on the morning of the, of whatever that Monday was.
PN222
The 16th?---Mm.
PN223
And by that stage you had obviously spoken to other people in the organisation?---Carl Hughes.
PN224
Yes. But not Colin Palmer at that stage?---I can't remember the exact sequence of events, Mr O'Donnell.
**** MARCO BASS XXN MR O'DONNELL
PN225
Were you surprised at the findings - - -?---Of the inquiry by Lindsay Woods?
PN226
- - - by Lindsay Woods?---Yes, I was.
PN227
What surprised you about them?---I felt that the second charge should have been sustained, as well as the first.
PN228
And did you advise Lindsay Woods of your surprise, or anyone of your surprise?---No.
PN229
No-one?---No.
PN230
What about Colin Palmer? Did you advise him of your surprise?---No.
PN231
What was your relationship like with Mr Everett before this matter?---Very brief.
PN232
No. I know it was very brief, because you were only in that position for a couple of months, I understand?---Two weeks, actually, Mr O'Donnell.
PN233
Two weeks. But in that stage you had already had harsh words I guess would be the polite way to describe it, wouldn't it - - -?---No.
PN234
No?---No.
PN235
My apologies, sir.
**** MARCO BASS XXN MR O'DONNELL
PN236
I have here an e-mail that - a copy of an e-mail, that you sent to Colin Palmer on 2 February. Do you have that included in your documents there?
PN237
MS McKENZIE: It is in B2?---In B2?
PN238
MR O'DONNELL: Now, this is a document, and you remember I just asked you a question about you never actually conveyed your feelings about this matter to anyone?---About which matter?
PN239
About your surprise or concern or whatever about the failure of the process to find Mr Everett presumably guilty of both the charges that had been initiated against him?---I certainly don't recall doing it, my answer is no.
PN240
You don't recall sending this e-mail? Sorry, is that what you are saying, no?---Which particular section of it are you referring to, Mr O'Donnell?
PN241
Well, if you sent it, you sent the whole lot, but particularly it deals with the matter of:
PN242
I am surprised that only one of the allegations was sustained against Mr Everett. I would like to put on the record a couple of simple observations about this case that should be .....
PN243
?---I don't recall having written that, Mr O'Donnell, but, yes it is my e-mail - I did send it.
PN244
Okay. Just as one last question, what journalistic ethic do you think was broken?---I think the ethic that says that journalists would always encourage other journalists and assist other journalists to report with fairness, accuracy and balance, and would not use any personal relationship - any personal relationship or connection - to try and pervert another journalist doing their job, and to reveal the truth of a matter, and that is precisely what I think Alan Everett did.
**** MARCO BASS XXN MR O'DONNELL
PN245
And that is not the finding of the investigation, is it?
PN246
Can I ask you - could you please just bear with me, just one last question - do you subscribe to a particular code of ethics?---Do I subscribe to?
PN247
Yes?---I subscribe to my employer's code of ethics.
PN248
Right?---The ABC Editorial Guidelines.
PN249
Right. No specific code of ethics, though, that we can look at and say,this is the distillation of ethical wisdom that has been arrived at in any particular - - -?---Well I am sure you are going to enlighten me, Mr O'Donnell.
PN250
No, I am just asking the question, I am not going to enlighten you. I would be happy to elsewhere, but not today?---I am bound by the ABCs editorial code and that is the code that I am committed to.
PN251
I have got no further questions, sir.
PN252
PN253
MS McKENZIE: Mr Bass, can I just ask you to clarify one issue that arose out of one of Mr O'Donnell's questions. The buy-out of overtime and penalties, you - Mr O'Donnell took you to this same e-mail MB2 where he referred to your decision that the ABC will no longer buy out his overtime penalties and allowances. Can you just explain what that decision relates to and why that was made?---Buy-outs are discretionary on the part of ABC management to compensate people who are working in long term shift work,
**** MARCO BASS RXN MS McKENZIE
where a penalty would normally apply. It has been done in the past to save administrative work when a person is long term in a particular overtime shift. When people cease to work in those overtime shifts, as occurred in Mr Everett's case, a buy out of penalties that he was not eligible for was naturally no longer appropriate and that is why it was withdrawn.
PN254
Following on from that, Mr Bass, how did Mr Everett's actual day-to-day job change following the disciplinary decision to demote him from point 32 to point 27?---From the time he returned to work, he was no longer working shift work, early morning sub-editing shifts, he was working nine to five or nine to six business hours, principally as a court reporter.
PN255
Thank you, I have nothing further of Mr Bass. Might he be excused?
PN256
PN257
PN258
THE COMMISSIONER: Please sit down, Mr Palmer.
PN259
MS McKENZIE: Now, your name is Colin Palmer?---Yes it is.
PN260
And you are the Director of Human Resources for the ABC?---Yes, I am.
PN261
Mr Palmer, have you prepared an affidavit of the evidence that you wish to give in these proceedings?---Yes I have.
PN262
Do you have a copy of that with you?---Yes I do.
PN263
Do you say that the contents of that affidavit are, to the best of your knowledge and belief, true and correct?---Yes, I do.
PN264
PN265
MS McKENZIE: No further questions of Mr Palmer.
PN266
PN267
MR O'DONNELL: Thank you, sir.
**** COLIN PALMER XXN MR O'DONNELL
PN268
Mr Palmer, can you quickly explain to me how you believe the disciplinary process at the ABC is supposed to work?---There are two broad disciplinary procedures. Are you talking about one for serious misconduct, or general misconduct?
PN269
Well, as the process that would apply that would have the impact that this did on Mr Everett, yes?---That is the serious misconduct - they are quite separately defined. With respect to serious misconduct, if there is an allegation made by an employee, or a manager, the usual process is either myself or Head of Workplace Relations or Head of Employment Services is contacted, and the manager or the employee usually discusses what the allegation is. If there is a prima facie case established, then an investigation is initiated and the person who the allegations are made against is written to and outlined of the procedure and the allegations made. We appoint an investigation officer. That person then investigates and comes and makes some finding of the matter. That matter is then or the report is then sent to the person that the allegations are made against for rebuttal or comment, or whatever they feel appropriate. It comes back and then the matter is returned to the delegate to make a decision on the matter. That is it, very briefly.
PN270
And the appeal process - it comes in place in this - - -?---Well there is really no formal appeal process but there is a section under 15 of the agreement that allows disputes where they are raised by an individual or an individual's employee or organisation to follow certain processes, which ultimately end up in this tribunal, if indeed it is unresolved.
PN271
Who do you believe initiated the disciplinary action against Mr Everett?---The request came from Mr Mark O. Bass, State Editor for Victoria.
PN272
But who initiated it, in your view?---The investigation?
PN273
Well, just to make it a little bit easier, you will remember that one of the questions that we were asked to answer here was "Did Mr Bass initiate the investigation into Mr Everett"?---He requested an investigation.
**** COLIN PALMER XXN MR O'DONNELL
PN274
Right?---I authorised it and initiated it, it depends on what you mean by initiate. If the matter is "who authorised and commissioned the investigation", that was me.
PN275
In the setting of a penalty against Mr Everett, in this matter, who made the decisions there?---In respect to the penalty, the decision ultimately was made by the Director of Human Resources, Ms Jackie Hutchison, at the time.
PN276
And how would, I must say this is interesting, because this is the first time we have been advised Ms Jackie Hutchison is the person who made the decision. Perhaps we should have known that earlier?---Sorry, for what, sorry?
PN277
The decision on the penalties. Who made - - -?---The decision on the penalty was made by Ms Jackie Hutchison and that was clearly enunciated in the documentation and we have mentioned it to you numerous times. The Director of Human Resources approved the penalty. Perhaps we are getting our words crossed a bit. Indeed, even the documentation has the formal approval notification from Jackie Hutchison at the time, the letter that went to Mr Everett, on one of my attachments I think.
PN278
Looking at your affidavit, do you have a copy there?---Yes.
PN279
Clause 12?---Sorry, just - it is on the document, on CP4. Ms Hutchison's approval signature affixed to the letter - sorry, to paragraph 5, yes.
PN280
12?---Yes.
PN281
12. "In early February 2001 I contacted Mr Bass" etcetera?---Sorry, what - what are we reading?
**** COLIN PALMER XXN MR O'DONNELL
PN282
Clause 12 in your affidavit?---12.
PN283
Yes, sorry?---Sorry, I misheard. I thought you said 5. Sorry, go on.
PN284
So, simply that, Mr Bass wanted Mr Everett to be demoted and returned to the newsroom as a general reporter under the supervision of the executive producer. It was also his view that his salary should be reduced to reflect the demotion?---That is what Mr Bass requested, yes.
PN285
The buy-out of penalties, overtime, etcetera. Who would have made that decision?---To pay it or remove it?
PN286
No, to not pay it, in the case of Mr Everett?---Who had made that decision? Again that would have been the director of human resources to remove it as far as the disciplinary action. The actual penalty, if I am correct, is in the letter that was sent to Mr Everett dated - - -
PN287
Sorry. Can I just get one thing very clear?---Sure.
PN288
Who was the director of human resources?---At this point in time I am the director of human resources.
PN289
Who was the person that made that decision then to remove those buy - that buy-out of those positions?---It was the director of human resources at the time - - -
PN290
Who?--- - - - was Ms Jackie Hutchison.
**** COLIN PALMER XXN MR O'DONNELL
PN291
Right. And so she made a decision, you say, to have as part of the penalty the demotion, the reduction in salary and the loss of the buy-out of allowances, etcetera?---Yes. There are three components to it that I can - or indeed four components. One is the - yes, the reduction in base salary, ordinary time earnings from one point to another. There was the removal of the 25 per cent allowance. The next decision was the embargo, if you wish, that there would be no further salary for a period of 12 months, and the date upon which that would occur, being 26 February this year. So they were the components of the penalty, and that was put to Ms Hutchison on my recommendation and that of a news and current affairs executive who had endorsed it. But the decision to do that was taken by the director of human resources at the time, Ms Jackie Hutchison.
PN292
Okay. I have got no further questions, sir.
PN293
THE COMMISSIONER: Thank you Mr O'Donnell.
PN294
MS McKENZIE: I have nothing of Mr Palmer. Might he be excused?
PN295
PN296
THE COMMISSIONER: Now, do you want to break early for lunch and put a submission after lunch, or - - -
PN297
MR O'DONNELL: I would prefer that, yes, sir.
PN298
THE COMMISSIONER: Are you content with that?
PN299
MS McKENZIE: Yes, Commissioner.
PN300
THE COMMISSIONER: Well if we adjourn now, and if we resume say at about - would a quarter to two be convenient?
PN301
MS McKENZIE: Yes thank you, Commissioner.
PN302
THE COMMISSIONER: Very well. We will adjourn until a quarter to two.
LUNCHEON ADJOURNMENT [12.35pm]
RESUMED [1.49pm]
PN303
THE COMMISSIONER: Yes, Mr O'Donnell.
PN304
MR O'DONNELL: Thank you, sir. I won't take much time of the Commission, because I don't think there is particular need to. I simply say that in a previous meeting of this Commission, there were four questions which you sought answers to. I think the MEAA, in its submission to you previously, has answered all four of those questions.
PN305
THE COMMISSIONER: Do you want me to mark your letter of 6 July?
PN306
PN307
MR O'DONNELL: And simply in the view of the MEAA the question that you - the first question you raised, "Did Mr Bass initiate the investigation into Mr Everett?, I think I - by careful consideration of both our letter to you and to Mr Bass' responses to questions put here this morning that it is quite clear that Mr Bass did, in fact, initiate the investigation into Mr Everett in this matter. On the second question, "Did Mr Bass play a part, and if so, what, in the original decision in relation to the penalty to be imposed upon Mr Everett?" Again the answer to that is yes, Mr Bass did play a part, by his own admission today.
PN308
In fact, he acknowledged he was a player in all parts of the process against Mr Everett and I think most telling would be the idea that one part he initiated was the decision to stop Mr Everett's buy-out of penalties, allowances and so on, despite Mr Palmer following up on that and saying no, he made the decision or human resources made the decision. By Mr Bass' evidence given he did that and it was quite clear that Mr Bass did play a part in that original decision in relation to those penalties imposed on Mr Everett. Did Mr Bass form part of the appeal by Mr Everett against the decision made by the ABC? Again, it was clear in the evidence that Mr Bass gave to the Commission this morning, that he did play a part.
PN309
In fact he was the only person at that meeting representing the ABC, whilst Ms Woods was there as a note taker she made no contribution to the process or to the decisions and, despite Mr Everett - Mr Bass' comments that it was simply passed on to a different authority within the organisation in reality at that meeting, Mr Bass advised us that he did not resign from the previous position. Coming to question 4, which you sought answers from us, again it is quite clear that if Mr Bass was involved in all three parts of the process and by his acknowledgment today he was, then simply he was not the unbiased person that should have heard the appeal.
PN310
He was the complainant in the first instance. He initiated the investigation. He played a part in the decision. He played a part in imposing the penalty. He played a part in the appeal process. By that very nature Mr Everett was denied procedural fairness in this matter.
PN311
MS McKENZIE: Commissioner, I want to take you to some source documents as it were of the ABC submissions and perhaps you might like to mark those.
PN312
PN313
MS McKENZIE: The written submissions of ABC5 address directly the particular questions. What I want to expand on a little bit is the question 4 and importantly, the notion which Mr O'Donnell has just referred to in his summary. The notion that is the answer to questions 1, 2 and 3 were all affirmative then it must flow from that, that Mr Everett denied procedural fairness in relation to the implementation of clause 21 of the enterprise agreement. That proposition is one that the ABC fundamentally disagrees with. If I can take the Commission to, just briefly, the terms of the employment agreement.
PN314
Section 21 deals with serious misconduct and serious misconduct is defined to be misconduct of the kind which is set out in the clause 20 definition which deals just with ordinary misconduct, so it is misconduct of that kind where the level of seriousness or the adverse ramifications of the offence are so extreme in the opinion of the person authorised by the ABC that immediate action must be taken to investigate matter, with a view to taking disciplinary action. So, the difference we have got in terms of the way the agreement approaches it, between misconduct and serious misconduct is that serious misconduct is of such a level of seriousness or conduct which carries with it such adverse ramifications that once an opinion has been formed about that by an appropriate person, immediate action must be taken to investigate the matters.
PN315
Now on the evidence of what the ABC says happened, is that Mr Bass received a complaint from a person external to the ABC and that complaint was to do with the conduct of Mr Everett. Mr Bass was clearly concerned by what he had been told and considered it himself to be a serious matter. Mr Bass then took appropriate advice from, and I think his evidence says:
PN316
From the local human resources management, and from his federal head, who advised him to speak to the federal human resources person.
PN317
Mr Palmer's evidence is that Mr Bass did speak to him and in the course of the discussion Mr Palmer asked him to provide whatever information he could to him, about it and Mr Bass forwarded I think to Mr Palmer the e-mail that he had received from Mr Robertson, the person who made the complaint and an opinion was formed at that point that potentially we were dealing with the situation of serious misconduct. Not normal misconduct, but serious misconduct.
PN318
The enterprise agreement requires that where serious misconduct is involved an independent investigation officer will be appointed. Now, Mr Palmer's evidence is clearly that it was he, in his particular position of authority being the appropriate delegate from the managing director, which had the authority to - who had the authority to initiate an investigation for the purposes of dealing with allegations of serious misconduct, and it was only Mr Palmer, or one of the other three persons in the human resources division which had that authority.
PN319
So regardless of whether the opinion of Mr Bass was, or Mr Cameron was, or Mr Robertson was that Mr Everett may have engaged in something which was serious, in order for an investigation to commence Mr Palmer had to form the view that, prima facie, this was a matter of serious misconduct and accordingly appoint an independent investigation officer.
PN320
It is important, Commissioner, that the role of the investigation officer is firstly to establish the facts and report back to the relevant delegate. The relevant delegate being Mr Palmer, the person who appointed that officer and secondly that that person be someone who had had no prior involvement in the misconduct of disciplinary procedures. So the enterprise agreement provides that you have an allegation of serious misconduct, the appropriate delegate having formed that opinion appoints an investigation officer. That person is independent, that person is charged with investigating the facts and then reporting back to the delegate.
PN321
Now Mr Bass is not directly involved in that process. There is no suggestion as we understand it, in this matter, that the ABC has failed to comply with its obligations under the enterprise agreement and as we understand it there is no complaint being made about the conduct of the investigation by the independent officer, or no complaint - and no complaint is being made about the findings of the investigation being that serious misconduct is substantiated in relation to one of the allegations although not the other.
PN322
Once the investigation is initiated there is then a decision as to what to do with the employee in the course of the investigation and clause 21.3 makes it clear that the employee may be suspended with or without pay during the investigation and then deals with some of the detail as to what happens in the event that there is a suspension without pay and the allegations are then not substantiated.
PN323
The decision to suspend Mr Everett with pay or without pay, is not a decision which is material in any way to the dealing with the allegations and the substantive fairness of that process. Clause 21.4 then deals with what choices are available to the ABC, where an allegation of serious misconduct has been substantiated through investigation. So the election under 21.4 only arises if the investigation substantiates the allegation of serious misconduct and that is what happened in this case. The allegation was - of the two allegations, one allegation was substantiated, one was not. So there was a finding that serious misconduct had occurred. Not misconduct. Serious misconduct within the meaning of the agreement and there is then a range of options as to what is to occur.
PN324
The four questions focus very much on the role that Mr Bass played in the whole process and it appeared at least in part in some of the cross-examination of Mr Bass that there may be some personal hostility or animosity between Mr O'Donnell and Mr Bass which may in part explain what might otherwise appear to be the undue attention Mr Bass seems to assume in this process.
PN325
THE COMMISSIONER: I did not apprehend that - I am used to advocates being aggressive to witnesses - - -
PN326
MS McKENZIE: Yes.
PN327
THE COMMISSIONER: - - - and it does not necessarily mean personal animosity.
PN328
MR O'DONNELL: But there is no doubt that the MEAA sees the role that Mr Bass played as potentially tainting the overall process and we say that that cannot be right. Firstly because on the fax Mr Bass did not investigate the investigation within the meaning of the employment agreement and secondly, importantly, that it is of course imperative that Mr Bass being the relevant manager be involved in the consideration of the outcome of the investigation and the determination of an appropriate penalty.
PN329
There can be no real criticism properly made that the state editor of News and Current Affairs not be closely involved, consulted and significant weight given to his views in relation to what should happen by way of disciplinary action where a finding of serious misconduct against a chief producer. Mr Everett was a senior journalist who was directly within the responsibility of Mr Bass and Mr Bass' affidavit sets out his responsibilities as state editor and clearly says that he has responsibility for personnel matters and for matters to do with performance appraisal and the like of his staff.
PN330
So, of course, he had to be involved and of course he would have an opinion and a view about these matters. Mr Palmer directly consulted him and Mr Cameron about the particular relevance and weight that should be given to the breach of journalistic ethics and Mr Palmer, of course, consulted with him and with Mr Cameron about what the appropriate sanction should be and Mr Bass' affidavit deals in part with his explanation as to why he recommended demotion and it related to his loss of confidence in Mr Everett now as a reporter and his desire to have Mr Bass come and work more closely back in the newsroom rather than having greater autonomy and that judgment of course is a judgment that only the relevant senior manager can make so it would, in our submission, really be nonsense to suggest that a person such as Mr Bass in his position, should not have been closely involved and should not have been someone to whom significant weight should be given to his views.
PN331
The question then becomes, given that that was how the matter was proceeded with and dealt with, did the involvement of Mr Bass constitute the failure in procedural fairness and the MEAA I think it is fair to say focusses fairly strongly on the role that Mr Bass played in what they call at various time, the review or the appeal of the decision. But it is clear that the agreement itself does not provide any express right of review or appeal against disciplinary decisions. It is not uncommon in some environments, particularly in the public sector, where there are built in internal disciplinary reviews or grievance processes for an express right of review of appeal to be provided for, against decisions at first instance which may affect an employee.
PN332
Such a procedure is not provided for in this agreement and where those procedures do occur, they invariably identify and nominate the person's to whom such appeals or reviews should be heard. In relation to this procedure, which is embodied in an employment agreement, to which the MEAA is a party a process which reflects the agreed position of the unions and the ABC the independence and the fairness and the attention is directed towards the fairness of the process, leading then to the decision and there is a range of options identified.
PN333
And as I have said before, no complaint has been made in relation to the conduct of the investigation. There is no suggestion that Mr Everett was denied a hearing or was not told of the detail of the allegations against him, or was not given a proper opportunity to respond, the sorts of matters that are typically encompassed in the notion of procedural fairness. No complaint is made about any of those matters and we would say no complaint could be made about any of those matters.
PN334
So the allegation or complaint of substantive fair - lack of procedural fairness appears to arise out of the steps that the MEAA took after the decision had been communicated to Mr Everett in relation to the disciplinary action and if the Commission can turn to the affidavit of Mr Palmer, there is an attachment which is, I think attachment - it is the second last page CP5, which is the letter to Mr Palmer from Mr O'Donnell and he makes it clear that the MEAA is invoking the provisions of clause 15, the Prevention and Resolution of Disputes, advises the ABC that the MEAA did not believe that the interests of Mr Everett have been recognised and they are in dispute in relation to the actions.
PN335
They make it clear they complain against the penalty and then they go on to say:
PN336
As provided for in subclause 15.3.1, I now seek an urgent meeting with the local manager to attempt a resolution of this matter.
PN337
So the MEAA are requesting there, that there be a meeting with the local manager, clearly Mr Bass, the state news editor, the local manager of Mr Everett and the person in respect of whom all of the information and knowledge about the matter at that local level resided. There is no complaint being put here that such a meeting should somehow take place with a person who has no knowledge whatsoever of the history, someone who would be in some way independent or objective.
PN338
They request a meeting with the manager and that is entirely consistent with the way in which clause 15, which deals with settlement of disputes is constructed. It provides for, in the first instance, an internal process to try and resolve issues by having discussions. Where the issues relate to a particular employee, the procedure contemplates that the employee or their representative should discuss the dispute with their local manager.
PN339
Mr O'Donnell was requesting a meeting and an appropriate meeting took place. Mr O'Donnell and Mr Everett attended that. Mr Bass attended and also Ms Woods, who was the investigating officer, who also would have been a person in possession of the relevant facts and information. Mr Bass attaches, in his affidavit, the letter that he sent to Mr O'Donnell following that meeting. The letter which is, I think, MB3 dated 26 February, which confirms what the ABC's position was following that meeting. He states that he listened, in good faith, to the information provided by you about the financial consequences that Mr Everett would incur and he confirms that in response he clearly stated his reasons why he could not depart from the original decision and he then says:
PN340
I confirm my agreement with Mr Palmer's advice -
PN341
and repeats the original decision and he then confirms that you asked that Colin Palmer be advised that the matter could not be resolved and you requested that Colin Palmer advised national editor, John Cameron that in accordance with 15.3.1(b) you wanted to take the matter to the Federal level.
PN342
He then reports that he has advised Mr Cameron of that. He has discussed the issues and his response and that Mr Cameron concurs with that response and has requested that Mr Bass advise Mr O'Donnell that no purpose will be served in having a meeting at that next level and the letter concludes:
PN343
As I understand it, you now have the right to decide whether to proceed in accordance with section 15.5 of the agreement -
PN344
which is, of course, what the MEAA did and what has lead directly to these proceedings. So in that circumstance, Commission, we would say it is difficult to see how there could have been any failure of procedural fairness or any other kind of procedural defect in the conduct of the investigation into Mr Everett, the decision as to the appropriate penalty, the communication to Mr Everett and his union of that decision, the preparedness to meet and then revisit or discuss that further with Mr O'Donnell and the following by the ABC of the dispute settling procedure, as the MEAA did, provided for in the agreement. So in those circumstances - - -
PN345
THE COMMISSIONER: Do you say that the proper application of the agreement in 15.3.1(b) permits the more senior level of management to decline to meet?
PN346
MS McKENZIE: Well, in circumstances where the more senior level of the ABC have formed the view, based on the information provided to it from the outcome meeting that a meeting would not serve any useful purpose in the sense that it was unlikely to change its mind, communicating that in a frank and honest way to the MEAA in our submission meets the requirement there. There is little point in the parties meeting for the sake of meeting if the decision is not going to change and Mr Bass makes it clear in the letter that he has done exactly as Mr O'Donnell requested. He has - - -
PN347
THE COMMISSIONER: But that it is not going to change on the basis of information provided by - under (a), the local manager.
PN348
MS McKENZIE: Well, it is not going to change if there is no additional or further information provided by the MEAA. I think Mr Bass' letter says that he discussed with Mr Cameron, the matters that the MEAA raised.
PN349
THE COMMISSIONER: Yes.
PN350
MS McKENZIE: I think the position would clearly have - well, I cannot say what it would have been, but had the MEAA raised some further arguments that they wished to make, or said "look, we wish to meet with Mr Cameron or Mr Palmer because we want to put some further argument to you", then under the agreement I think Mr Cameron and/or Mr Palmer would have been required to meet.
PN351
THE COMMISSIONER: Is that the test?
PN352
MS McKENZIE: Well - - -
PN353
THE COMMISSIONER: Or is the test that the matter is simply not resolved?
PN354
MS McKENZIE: Well, I think, I am not sure that there is a test as such, Commissioner, but it says:
PN355
Should discuss the dispute with their local manager. Where this is not resolved and of concern the dispute will be referred to more senior levels of management.
PN356
It does not say for just - - -
PN357
THE COMMISSIONER: That is right. So that act of (b) is the non-resolution under (a) isn't it?
PN358
MS McKENZIE: Yes, but (b) was complied with, in the sense that Mr Bass did refer the matter to Mr Cameron. It does not say in (b) that there would then be further discussions - - -
PN359
THE COMMISSIONER: I see.
PN360
MS McKENZIE: - - - Mr Bass clearly did, at Mr O'Donnell's request, refer the matter back to Mr Cameron and to Mr Palmer and then relay back to Mr O'Donnell what the outcome of his discussions with them were. So, we would say that in any event 15.3.1(b) was complied with. The matter was clearly referred up the line and having communicated that Mr O'Donnell the matter was left on the basis that it was clearly a matter which the MEAA could elect to progress by pursuing the matter, or taking the matter to the Commission or exercising one - - -
PN361
THE COMMISSIONER: Which they have - - -
PN362
MS McKENZIE: - - - of the other processes.
PN363
THE COMMISSIONER: - - - which they have done.
PN364
MS McKENZIE: Which they have done.
PN365
THE COMMISSIONER: They brought it to the Commission.
PN366
MS McKENZIE: Indeed. Having done that though, Commissioner, it is clear that when the matter came to the Commission, the MEAA identified the matters on which it required decision from the Commission by way of resolution of the dispute to be the matters which are contained within the four questions.
PN367
THE COMMISSIONER: Yes.
PN368
MS McKENZIE: That has now been identified as the issue and the parties have each addressed the Commission as to the particular responses that they give to those questions. The ABCs position obviously clearly is that the evidence will demonstrate that Mr Bass did not initiate the investigation within the meaning of the agreement, and that is the only relevant context in which that question could be posed; that Mr Bass clearly played a part, and an important part, in the decision although he was not the decision maker in relation to the penalty; that Mr Bass did not form part of an appeal against the decision in the sense that one might normally use that term, but clearly Mr Bass participated in a meeting with Mr O'Donnell which had, as its object, a review or discussion again of the decision, but that notwithstanding all of that, Mr Bass' involvement did not and could not constitute any failure in procedural fairness in the implementation of the clause and once again it comes back to the particular wording of the agreement. They would be our submissions, Commissioner.
PN369
THE COMMISSIONER: Thanks, Ms McKenzie. Mr O'Donnell.
PN370
MR O'DONNELL: Just a number of points that I would like to raise. The matter of whether the process is such that the local manager and there are a number of local managers and I just raise that, is that we had a meeting with Mr Bass and certainly Ms Woods was there, as I have said - generally I believe in the role of a note taker. She certainly made no contribution to that meeting as far as any substantive matters and at the end of that, in accordance with the agreement, we clearly had not reached any resolution of the situation as we saw it or as Mr Bass saw it and as he advised us at that meeting.
PN371
We were still in dispute, I guess about the matter. Mr Bass certainly never advised us in any way that no, the information I give you at this meeting may subsequently be changed. It was certainly quite clear that the matter was being dealt with by him. He was making a decision. We were of the opinion that, given that we had reached a stalemate there, it was more appropriate that we seek a resolution with a senior level of the organisation and accordingly we sought, as part of that process, that it be referred to Mr Cameron in his more senior role.
PN372
So, I am surprised at the interpretation that the ABC is now putting on that matter. I also point out in the document attached to the ABC material, CP6, where it certainly is implied in Mr Palmer's facsimile to me of the 19th of the 2nd:
PN373
Marco Bass head of news and current affairs is the person you should contact to set up a meeting ...(reads)... you should then contact John Cameron.
[2.19pm]
PN374
Well, we would be hardly seeking John Cameron's involvement in the thing just to review it from the position of Mr Bass. Clearly, if we were to contact - and that is what we sought of Mr Bass - the advice to Mr Cameron that the process had been unsuccessful, then clearly, we wanted it to go further. Now, as in Mr Bass' letter to us it is clear that no, Mr Cameron has refused to meet with us. He has heard the advice of Mr Bass but he has certainly not heard any advise from us. And so, on that basis, we suggest that there was a step available for the ABC to seek to resolve it before it came to this place.
PN375
Simply going back, it seems to us, that the procedural fairness is not simply restricted to the provisions of clause 21 of the certified agreement. Procedural fairness is a concept that should be available in all decisions that are being made by the organisation, or any organisation, which have such a massive impact on the employment conditions, in this case, Mr Everett. Thanks.
PN376
THE COMMISSIONER: Thanks, Mr O'Donnell. Very well, I will reflect on what has been put to me and reserve my decision. The matter is adjourned.
ADJOURNED INDEFINITELY [2.21pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #ABC2 AFFIDAVIT OF JOHN CAMERON PN83
MARCO BASS, AFFIRMED PN92
EXAMINATION-IN-CHIEF BY MS McKENZIE PN92
EXHIBIT #ABC3 AFFIDAVIT OF MARCO BASS PN98
CROSS-EXAMINATION BY MR O'DONNELL PN100
RE-EXAMINATION BY MS McKENZIE PN253
WITNESS WITHDREW PN257
COLIN PALMER, SWORN PN258
EXAMINATION-IN-CHIEF BY MS McKENZIE PN258
EXHIBIT #ABC4 AFFIDAVIT OF COLIN PALMER PN265
CROSS-EXAMINATION BY MR O'DONNELL PN267
WITNESS WITHDREW PN296
EXHIBIT #MEAA4 LETTER OF 6 JULY 2001 PN307
EXHIBIT #ABC5 SOURCE DOCUMENTS OF ABC SUBMISSIONS PN313
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